DUI Appeal - Attempt DUI Does Not Exist in Kansas

In State of Kansas v. Perkins, --- P.3d ----, 2011 WL 2732597 (Kan.App.), the Supreme Court of Kansas was asked to determine whether the definition of attempt found in the criminal code should be applied to a charge of "operating or attempting to operate a vehicle while under the influence of alcohol to the degree he could not do so safely." At trial, Perkins testified that the passenger, his stepson, had been driving the entire time and that the two of them switched places after parking the truck. According to Perkins, they had pulled over to clean up vomit he had deposited in the truck cab. In the course of doing so, they had gotten out of the truck, and Perkins had then sat down in the driver's seat. Perkins told the jury he didn't have much recollection of Trooper Henrickson or their interaction. Perkins' stepson testified that he had driven the pickup and parked on the shoulder.

Under K.S.A. 21–3301, an attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” Perkins reasons that the jury concluded he drove the pickup truck and then parked on the shoulder of the highway. In turn, he could not have been guilty of an “attempt” to drive because he neither “failed” in that effort nor was he “prevented or intercepted” before he could and actually did drive.

Perkins argued there was insufficient evidence to support a conviction for attempting to operate or drive the pickup truck. The lynchpin of Perkins' legal argument was how he defined an attempt under the DUI statute. There is no language in K.S.A.2008 Supp. 8–1567 that supplies a specific definition. Perkins submitted that the failure to define "attempt" within the DUI statute allowed him to import the definition of attempt from the provision of the Kansas Criminal Code used to establish attempts as a distinct type of crime, K.S.A. 21–3301.
In rejectiong the defendant's argument, the Supreme Court stated:

"Applying the requirements of K.S.A. 21–3301 to an attempted DUI would undercut the purposes of K.S.A.2008 Supp. 8–1567. Driving under the influence, like many traffic offenses, falls in the no-bad-intent category. State v. Martinez, 268 Kan. 21, Syl. ¶ 3, 988 P.2d 735 (1999). If K.S.A. 21–3301 were to control, however, an attempted DUI would require proof of a specific intent to drive while drunk. Nothing indicates the legislature had that in mind. It would be a peculiar thought: The completed offense of DUI would require no criminal or bad intent, but an attempted DUI would require a specific state of mind to perform the prohibited act of driving drunk.

In turn, voluntary intoxication would be a defense to an attempted DUI if it negated that specific intent. What that would mean is someone really drunk—too drunk to get a car in gear, for example—could beat a charge of attempting to drive under the influence precisely because of his or her intoxication. Such a result might be the stuff of law school debate, but attributing it to the legislature is kind of loopy. And the courts refrain from seeing loopiness in legislative handiwork unless they have no other choice. State v. Barnes, 275 Kan. 364, Syl. ¶ 2, 64 P.3d 405 (2003) (“The legislature is presumed to intend that a statute be given a reasonable construction so as to avoid unreasonable or absurd results.”).

There is another, independent reason the legislature did not intend to incorporate the criminal attempts statute into the DUI statute. The inclusion of the phrase “attempt to operate” in the definition of the DUI offense in K.S.A.2008 Supp. 8–1567 would have been unnecessary and, thus, superfluous had the legislature meant the criminal attempts statute to govern. The provisions of K.S.A. 21–3301 apply to “the [failed] perpetration of a crime.” In turn, a “crime” includes an offense “created by statute other than in this code.” K.S.A. 21–3102(2). And a crime “is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine ... is authorized.” K.S.A. 21–3105. Read in tandem, K.S.A. 21–3102(2) and K.S.A. 21–3105 establish the offense of DUI, as set forth in K.S.A.2008 Supp. 8–1567, as a “crime.”

Had K.S.A.2008 Supp. 8–1567 contained no language regarding attempts at all, K.S.A. 21–3301 would have applied to criminalize an attempted DUI. Accordingly, the legislative decision to mention attempts specifically and to treat them identically to the completed crime must have been undertaken to change the default rule that would otherwise apply K.S.A. 21–3301 for that purpose. As we have said, the reference to attempts in K.S.A.2008 Supp. 8–1567 would be wholly unnecessary and entirely vestigial if the legislature wanted K.S.A. 21–3301 to control. The accepted rules of statutory construction run counter to that result. See Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601, 613, 124 P.3d 74 (2005); State v. Van Hoet, 277 Kan. 815, 826–27, 89 P.3d 606 (2004) (“The court should avoid interpreting a statute in such a way that part of it becomes surplusage.”).

We, therefore, believe the legislature both meant to act in a reasonable way when it referred to an attempt to operate a vehicle as being included in the offense of DUI outlined in K.S.A.2008 Supp. 8–1567 and wasn't simply littering the statute with extra words. Accordingly, we reject Perkins' argument that the nature and scope of an attempted DUI is controlled by K.S.A. 21–3301.

Thus, the conviction was affirmed.

Editor's Note: Unlike, Kansas, many other states do not include the word "attempt" in their specific DUI/DWI statute, although they do have such an offense in the criminal code.. According to Kansas' position, that would create a loophole - "[h]ad K.S.A.2008 Supp. 8–1567 contained no language regarding attempts at all, K.S.A. 21–3301 would have applied to criminalize an attempted DUI" said the Supremes - keep this opinion available on your next felony. It could get dropped to a misdemeanor if the "attempt" defense applies.....


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